Dweck v Dweck

[*1] Dweck v Dweck 2005 NY Slip Op 51091(U) Decided on May 27, 2005 Supreme Court, Nassau County Iannacci, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 27, 2005
Supreme Court, Nassau County

Mark Dweck, Plaintiff,

against

Brenda Dweck, Defendant.



203692/03

Angela G. Iannacci, J.

Upon the foregoing papers, the motion by the plaintiff husband for an order directing the defendant wife to execute documents necessary to obtain a $300,000 mortgage on the marital residence, or, in the alternative, an order directing the sale of the marital residence, is determined as hereinafter provided:

The marital residence, located in Great Neck, is encumbered by only one lien in the amount of $125,000. That mortgage is held by North Fork Bank (the bank). In 2002, pursuant to a stipulation of settlement between the bank and the husband, the home was used as collateral for a loan given by the bank to Archer Worldwide, Inc. (Archer), a business owned by the husband, which he claims is his separate property. The husband signed the agreement as president of Archer and as the guarantor. Furthermore, the stipulation of settlement between the bank and the husband was never executed by the wife. Due to an alleged downturn in Archer's business, the husband has been unable to pay the loan on the business. Accordingly, the bank has notified the husband of the default and of its intention to commence foreclosure proceedings.

Initially, the husband's request for an order directing the sale of the marital [*2]residence prior to trial is denied because this court has no authority to direct the sale of a marital residence held by the parties as tenants by the entirety prior to an alteration in the marital relationship (see Adamo v Adamo, ___ AD3d ___, 2005 WL 1023110 [2d Dept. May 2, 2005]).

With regard to the request for an order directing the wife to execute documents necessary to obtain a $300,000 mortgage on the marital residence, it is also denied. The husband relies upon Lidsky v Lidsky (134 Misc 2d 511 [1986; Sup. Ct. Westchester Cnty, Coppola, J.]). In Lidsky, the court directed the wife to execute documents necessary for the refinancing of the marital residence pendente lite. The court relied upon DRL § 234 as authority for its decision. While recognizing that it had no authority to order the sale of the marital residence until the marital relationship had been altered, the court reasoned that the direction to obtain a mortgage does not change the way the property is held, but rather prevents the dissipation of the asset (see also Weinstock v Weinstock, 2005 NY Slip Op. 25134 [2005; Sup. Ct. Nassau Cnty, Spinola, J.]).

DRL § 234 provides as follows, in pertinent part: In any action for divorce, for a separation , for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to the property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment.

DRL § 234 indicates that prior to final judgment the court only has the authority to direct the possession of marital property. Contrary to the conclusion reached in Lidsky, there is no authority for the court to issue an affirmative injunction to command the execution of documents which will constitute an encumbrance on the marital property while preserving his separate property and reducing the marital estate available for equitable distribution. While this court clearly has the authority to preserve marital property, it can do so, among other things, by prohibiting a party from dissipating assets, by directing a party to make mortgage payments pendente lite as a means of temporary support, or by appointing a receiver (see Rosenshein v Roseshein, 211 AD2d 456 [1st Dept. 1995]; Peters v Peters, 127 AD2d 575 [2d Dept. 1987]). The request by the husband in this case must be authorized by the Legislature before this court can act (see Sedgh v Sedgh, 142 Misc 2d 931 [1989; Sup. Ct. Nassau Cnty, Winick, J.]).

The court recognizes that the unreasonable refusal to cooperate in obtaining a mortgage may result in the foreclosure of the marital residence. In the final judgment, this court may consider whether there was wasteful dissipation of a marital asset and distribute the other marital property accordingly.

This constitutes the decision and order of the court.

Dated: May 27, 2005 Angela G. Iannacci, A.J.S.C.